| Mo. | Oct 15, 1889
The defendant, indicted for the crime of murder, filed an application for a change of venue under the provisions of sections 1856 and 1859, Revised Statutes, 1879, based upon the prejudice of the minds of the inhabitants of the county. He also filed at the same time an additional affidavit under the j)rovisions of section 1877, properly supported by other affidavits, alleging that the judge of the criminal court
The special judge thereupon took and subscribed an oath that he would support the constitution, etc., and that he would “fairly and impartially decide defendant’s application for a change of venue here.” These things happened on March 17, 1888, and so the oath of the special judge is dated.
Afterwards, the special judge denied the application for a change of venue from the county, and after taking what the record terms ‘ ‘ a supplemental oath as special judge,” which said supplemental oath among other things recited that said affiant would ‘ ‘ hear and try the above cause without fear, favor or partiality and give the defendant a fair and impartial trial and faithfully demean himself in office.” These things occurred on the twenty-fourth of May, 1888j and such is the date of said supplemental oath.
The trial of the cause Then took place ; resulting, in the conviction of the defendant of murder in the first degree; he was sentenced accordingly, and appeals to this court.
I. When a defendant in a criminal cause files an application for a change of venue based upon the prejudice of the inhabitants of the county, and no other or further affidavit is presented, the judge of the trial court hears the application himself, and, if proved to his satisfaction, he orders the cause removed to another county in the same circuit, where such prejudice does not exist; but, if the circuit judge denies the application for a change of venue, then he proceeds with the trial of the cause just as if no such application had been made. State v. Whitton, 68 Mo. 91" court="Mo." date_filed="1878-10-15" href="https://app.midpage.ai/document/state-v-whitton-8006016?utm_source=webapp" opinion_id="8006016">68 Mo. 91. And the same
But, if there be filed an application for a change of venue based upon the prejudice of the inhabitants of the county, and this be supplemented by the requisite affidavits that the judge of such court “ will not afford him a fair trial, or will not impartially decide his application for a change of venue on account of the prejudice of the inhabitants of the county,” then, under the express terms of section 1877, from which the language above is quoted, such judge is “deemed incompetent to hear and try said cause,” and must do his duty as provided in section 1878, by ordering the election of a special judge, “ for the trial of the particular cause or to decide defendant’s application for a change of venue.”
Taking the clause of the section just quoted.in its literal sense, it would seem that two elections could be ordered, one for the election of a special judge “for the trial of the particular cause pending,” and another for the election of a special judge “ to decide defendant’s application for a change of venue.” But this view will not bear close scrutiny. Under our rulings, the defendant is entitled to but one application based upon the disqualifications of the judge. Stale v. Greenwade, 72 Mo. 298" court="Mo." date_filed="1880-10-15" href="https://app.midpage.ai/document/state-v-greenwade-8006595?utm_source=webapp" opinion_id="8006595">72 Mo. 298; State v. Anderson, 96 Mo. 241" court="Mo." date_filed="1888-10-15" href="https://app.midpage.ai/document/state-v-anderson-8009371?utm_source=webapp" opinion_id="8009371">96 Mo. 241. And the statute, when you get at its true meaning, intends but one such application. It matters not what disqualifying fact, as specified in section 1877, is alleged in the application, from that time forth, by ,the express terms of the section, the regular judge is rendered “incompetent to hear and try said cause.” So that, if our former rulings be correct, that but one application as aforesaid is allowed the defendant, and if a literal reading of. sections 1878 and 1879 is to prevail, then the defendant in a criminal cause, by filing an application based
In view of the dangerous consequences arising from such a construction, it will hot be adopted, but a more liberal construction, a construction which presumes that the legislature never intended to enact an absurd law, one incapable of sensible and practical operation, will be the construction which we shall adopt, and, in furtherance of such a construction, we shall presume that the word “or,” as used in sections 1878 and 1879, means “and.” The use of such judicial license in construing statutes is permissible as shown by the authorities. Taking this construction as correct, then the sections under discussion are rendered harmonious, otherwise they cannot be reconciled with each other nor with our rulings heretofore made.
We shall, therefore, rule that where an application, based upon, any of the causes specified in section 1877, is presented, thereupon it becomes the duty of the regular judge to order the election of a special judge “for the trial of the particular cause pending,” and, if the application be sufficiently broad to include the last ground of disqualification mentioned in section 1877, then that the regular judge shall also add the words to his order of election: “And to decide defendant’s application'for a change of venue.”
From these premises we draw these conclusions : First. That the special judge in this case was elected for a purpose not contemplated or authorized by law. Second. That in consequence of this no rights or jurisdiction were conferred upon such judge by his supposed election. Third. That there was no healing power in the subsequent consenting. of the defendant,
There are numerous other errors assigned, but it is unnecessary to examine them; they are errors coram nonjitdice and, therefore, unworthy of notice.
The judgment will be reversed and the cause remanded.